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TMI Blog2023 (4) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... of law:- "Whether in the facts and circumstances of the case of Rajasthan Tax Board was justified in law in holding that the crane services given by the assessee to the Govt./Private institution will not fall within the ambit of Section 2(36) (iv) of the RVAT Act-2003 and will not fall within the ambit of transfer of right to use goods?" 2. At the outset, it is pertinent to note that notice(s) in the instant matter were issued vide order dated 30.06.2020. Thereafter, as per order-sheet dated 29.07.2020, service upon the respondent was reflected to be complete. Accordingly, the matter is being taken up for final disposal. 3. Considering the fact that the revision petitions involve common facts as well as questions of law, STR Nos. 36/2020 and 132/2020 titled as Assistant Commercial Taxes Officer vs. M/s Aditya Break Down Service and Assistant Commercial Taxes Officer vs. M/s Agarwal Carriers and Lifters respectively, are being taken up as the lead cases/files. 4. Learned counsel for the petitioners has submitted that the matter pertains to the assessment years, 2006/2007 to 2010/2011. A survey was conducted at the premises of the respondent on 22.11.2011. The Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present Sales Tax Revision, on the following question of law:- "Whether in the facts and circumstances of the case of Rajasthan Tax Board was justified in law in holding that the crane services given by the assessee to the Govt./Private institution will not fall within the ambit of Section 2(36)(iv) of the RVAT Act-2003 and will not fall within the ambit of transfer of right to use goods?" 7. It was submitted by the learned counsel for the Revenue that the impugned order passed by the Rajasthan Tax Board is bad-in-law and perverse to the settled position of the law, as the learned Tax Board, did not apply its own mind in consonance with the relevant documents highlighting the correct legal position qua the connotations of a 'sale', as provided under The Rajasthan Value Added Tax Act, 2003 (hereinafter, Act of 2003). In this regard, he relied upon Section 2(35)(iv) of the Act of 2003 and submitted that tax has to be charged in all circumstances encapsulating the transfer of right to use goods, as the definition of 'sale' as provided under Section 2(35)(iv) is in consonance with Article 366(29A) of the Constitution of India. Furthermore, learned counsel also submitted that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the instant case. 10. Learned counsel further placed reliance upon condition Nos. 17 and 28, as enumerated in the contract entered between the respondent-assessee and the Transport Department. They are reproduced herein-under:- [Text was not readable] In light of the stipulations as prescribed under the aforementioned conditions, learned counsel submitted that there was a transfer of control for the use of the crane from the respondent-assessee to the Transport Department. As a result, it was conclusively argued by the learned counsel for the Revenue that the control and the right to use the goods deliverable i.e. crane, lay exclusively with the Transport Department. Therefore, in light of the arguments raised herein-above and relying upon the judgment of Great Eastern Shipping Company Ltd (Supra), it was argued that the Appellate Authority and the Tax Board committed a great error in not constituting the said transfer of the right to use the goods as a 'sale' as provided under Section 2(35)(iv) of the Act of 2003 read with Article 366(29A) of the Constitution of India. 11. Per contra, learned counsel for the respondent-assessee has vehemently opposed the contentions as rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well, during the tenure of the contract. Moreover, the respondent-assessee also had the additional duty to maintain a log book qua the usage of the said crane. Therefore, without any stretch of imagination, it cannot be said that the Transport Department had the right to use the services of the crane, exclusive of the control of the respondentassessee. Hence, after relying upon the terms and conditions of the contract, particularly Condition Nos. 17 and 28, the learned Tax Board had rightly adjudicated the questions of fact in favour of the respondent-assessee. 13. In order to substantiate upon their submissions qua the effective control and possession of the cranes with the respondent-assessee itself, learned counsel submitted that the Tax Board had held that the consumer of the service i.e. Transport Department, just wanted to consume/ utilize the desired services of loading, unloading, lifting and shifting with the help of the cranes. There was no reference in the contract, either direct or otherwise, to deal with the cranes in a specified manner by the consumer-Transport Department. Rather, the contract only included specific stipulations qua the performance of certain spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exclusive control of the consumer Transport Department over the said cranes in question. In this regard, even a cursory glance over Condition Nos. 17 and 28 of the contract dated 13.10.2008 reflect that it was the contractual obligation of the respondent-assessee to provide a driver and helper along with the crane. Moreover, even the responsibility qua the repair-work and maintenance of the cranes so delivered, was to be undertaken by the respondent-assessee itself. In addition to the said tasks, the respondent-assessee was also required to maintain a log book qua the usage of the crane and the incidental tasks that came therewith. Furthermore, the crane as provided to the consumer-Transport Department, could also be interchanged/exchanged at any point in time during the sustenance of the contract. Therefore, without an iota of doubt, it could be said that the consumer-Transport Department did not enjoy the exclusive control and possession of the crane, for the reasons mentioned herein-above. Accordingly, the contract dated 13.10.2008, did not give rise to a transfer of the right to use goods as stipulated under Section 2(35)(iv) of the Act of 2003 read with Article 366(29A) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to sell from the agreement to render service, and impose tax on the sale. The test therefore for composite contracts other than those mentioned in Article 366(29A) continues to be-did the parties have in mind or intend separate rights arising out of the sale of goods. If there was no such intention there is no sale even if the contract could be disintegrated. The test for deciding whether a contract falls into one category or the other is to as what is 'the substance of the contract. We will, for the want of a better phrase, call this the dominant nature test. 98. To constitute a transaction for the transfer of the right to use the goods the transaction must have the following attributes: a. There must be goods available for delivery; b. There must be a consensus ad idem as to the identity of the goods; c. The transferee should have a legal right to use the goods-consequently all legal consequences of such use including any permissions or licenses required therefore should be available to the transferee; d. For the period during which the transferee has such legal right, it has to be the exclusion to the transferor -this is the necessary concomitant of the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract of service and not of sale and the fact that the respondent-assessee has duly paid the service tax as leviable upon the said transaction, this Court is of the view that the crane services provided by the respondent-assessee do not constitute sale as provided under Section 2(35)(iv) of the Act of 2003 and hence, the order of the learned Tax Board does not call for any interference of this Court. 20. At the risk of repetition, it is imperative to note that the effective control of the crane, even while the same was in the use of the consumer for the tasks so contracted for, was that of the respondent-assessee. The consumer-Transport Department was not free to make use of the crane for the works other than those contracted for with the respondent-assessee or even take the said crane out from a specific area during the period of the contract when the crane was in his use. Therefore, the control and possession of the crane, as evidenced by the requirements imposed under Condition Nos. 17 and 28, lay with the respondent-assessee only. Hence, there were no mitigating circumstances warranting the contract dated 13.10.2008 to encapsulate a sale as provided under Section 2(35)(iv) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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